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Guide to employee and independent contractor misclassification

Updated on :

March 15, 2024
Guide to employee and independent contractor misclassification

The proper classification of workers as either employees or independent contractors is a critical task for businesses across various industries.

Misclassification occurs when a worker is classified as an independent contractor, even though they meet the criteria of an employee under labor laws. Employee misclassification is the act of wrongly categorizing individuals who should be considered employees, entitling them to certain benefits and protections. On the other hand, independent contractor misclassification refers to the improper classification of workers as independent contractors, denying them the rights and benefits typically afforded to employees.

The misclassification of workers poses significant risks for businesses. Employers who misclassify workers may be held liable for unpaid wages, overtime compensation, taxes, and benefits owed to employees. Additionally, misclassification can result in legal disputes, penalties, and damage to a company's reputation. Therefore, employers must classify workers correctly and ensure compliance with applicable local labor laws.

In the following sections of this guide, we will delve deeper into the criteria for distinguishing between employees and independent contractors, explore the potential consequences of misclassification, and provide best practices for accurately classifying workers to mitigate the risks involved.

Why do authorities care about employee misclassification?

Authorities have a vested interest in tackling the issue of employee misclassification, and it's not without good reason. When workers are misclassified as independent contractors instead of employees, it can have far-reaching implications that impact both individuals and society as a whole.

One key reason why authorities care about employee misclassification is the violation of employment laws and regulations. The Fair Labor Standards Act (FLSA) sets certain standards for minimum wage, overtime pay, and other worker protections. By misclassifying workers, employers can evade their responsibilities under these laws, depriving misclassified workers of the benefits and protections they deserve.

Both state and federal governments are concerned about employee misclassification because it can have significant financial implications. When workers are misclassified, employers may avoid paying payroll taxes, unemployment insurance, and workers' compensation insurance. This unfairly burdens the rest of society and can strain government resources.

Authorities at federal and state levels are committed to addressing employee misclassification through enforcement efforts and increased awareness. Federal and state agencies have been collaborating to share information and resources, conducting audits, and imposing penalties on employers found guilty of misclassification.

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Employee vs. contractor: which is which?

It is crucial to understand the difference between an independent contractor and an employee to ensure compliance with federal and state laws. Let’s explore the distinctions between an employee and an independent contractor.


Employees play a vital role in organizations as they typically work under their employers' direct guidance and supervision. They enjoy a range of benefits and protections, including the assurance of receiving at least the minimum wage. Employees are eligible for payroll taxes and can benefit from health insurance coverage provided by their employers. Additionally, they have access to a variety of employee benefits such as retirement plans and pension contributions, ensuring financial security in the long run. Social security benefits are also extended to employees, offering a safety net for retirement, disability, and other circumstances. In various industries, like construction, employee status is crucial as it guarantees the rights and entitlements that employees deserve.


On the other hand, independent contractors bring a different dynamic to the workforce. Contractors have more independence in their work, operating as separate entities rather than traditional employees. They are responsible for handling their own expenses and taxes. Unlike employees, contractors are not typically provided with health insurance or other employee benefits by the employer. They have the freedom to set their own schedules and decide how to accomplish their tasks. Contractors are not subject to employment taxes that are usually deducted from employees' paychecks.

What factors dictate worker classification?

Worker classification depends on various factors that help determine whether an individual should be classified as an employee or an independent contractor. Here are some key factors that come into play:

Financial control

One significant factor is the degree of financial control exercised by the hiring party. Employees typically have their work expenses covered by the employer, while contractors generally bear their costs.

Working relationship

The nature of the working relationship is essential in determining worker classification. Employees often have a more structured and ongoing relationship with their employers, whereas contractors are typically hired for specific projects or tasks.

Employee rights

The extent to which employee rights are provided can also be a deciding factor. Employees are often entitled to health insurance, social security contributions, and other employee benefits, whereas independent contractors are responsible for their arrangements.

Local laws

Local laws and regulations regarding worker classification play a crucial role. Each jurisdiction may have specific criteria and guidelines defining employment status, and adhering to these laws is essential.

Other factors

Various additional factors may be considered, including the level of control exerted by the employer over the worker's activities, the provision of tools and equipment, the permanency of the working relationship, and the extent to which the worker is integrated into the employer's business operations.

It is important to note that misclassification can have serious consequences, including legal and financial implications. Employers must ensure that they correctly classify workers according to the applicable laws and regulations, respecting employee rights and adhering to their responsibilities.

Are there only two worker classifications?

No, worker classification is not limited to just two categories of employees and independent contractors. Here are some common classifications that go beyond the traditional employee and independent contractor designations:

Full-Time employee

Full-time employees work for an employer regularly and typically have a set schedule and consistent hours. They are entitled to benefits and protections provided by the employer, such as health insurance, paid time off, and retirement plans.

Part-Time employee

Part-time employees work fewer hours than full-time employees. They often have a flexible schedule and may receive some benefits, albeit pro-rata, depending on the employer and local regulations.

Contract worker

Contract workers are hired for a specific project or a defined period. They work under a contractual agreement that outlines the scope of work, duration, and payment terms. Contract workers may have a set schedule or be paid on a project-based basis.

Independent Contractor or Freelancer

Independent contractors or freelancers are self-employed individuals who provide services to clients or businesses. They have a high degree of autonomy, often working on a project-by-project basis and managing their business operations.

Temporary worker

Temporary workers are employed for a limited duration to cover seasonal or short-term staffing needs. They may be hired directly by the employer or through staffing agencies and may be entitled to certain benefits or protections depending on the jurisdiction.

On-Call worker

On-call workers are available to work when needed but do not have set hours. They may be called in to cover unexpected shifts or provide additional support during busy periods.


Volunteers or interns typically work without pay or to gain practical experience in a specific field. They are not considered employees and may be subject to specific regulations governing their engagement.

How do I know if employees are misclassified?

Determining whether employees are misclassified as independent contractors requires careful evaluation of their employment relationship and considering key factors. Here's how you can assess if employees are potentially misclassified:

Control and supervision

If you exercise significant control over how, when, and where the work is performed, and you provide detailed instructions or oversee the employee's activities, they are more likely to be classified as an employee rather than a contractor.

Duration and permanence

Employees typically have an ongoing, long-term relationship with the employer, whereas independent contractors are usually engaged for specific projects or fixed duration. If the worker's engagement extends beyond a defined project or continues indefinitely, they may be misclassified.

Degree of independence

Examine the level of independence the workers have in their work arrangements. Independent contractors usually have the freedom to work for multiple clients simultaneously, whereas employees typically have exclusivity and primarily work for a single employer.

Provision of tools and equipment

Providing tools, equipment, or materials necessary for the work is more indicative of an employer-employee relationship. Independent contractors typically supply their tools and resources.

Financial Arrangements

Employees typically receive a regular wage or salary, whereas independent contractors are often paid based on project completion or provided with invoices for their services.

The risks of worker misclassification

Misclassifying workers can lead to various penalties and consequences. Here are some of the possible penalties for misclassifying workers in the US:

  1. Tax violation fines: Employers may face fines for tax violations, including failing to file W-2 forms for misclassified workers. These fines can amount to $50 per unfiled form, along with a percentage of the misclassified employees' wages and FICA (Federal Insurance Contributions Act) taxes.
  2. Payment penalties: Employers may be subject to payment penalties, with potential fines of up to $1,000 per misclassified worker. These penalties are intended to compensate for any financial harm caused to misclassified employees.
  3. Employee benefits insurance repayments: Misclassification may require employers to repay or provide retroactive benefits, such as health insurance, retirement contributions, or other benefits that were denied to workers.
  4. Class action lawsuits: Misclassified workers, individually or as a group, may file class action lawsuits against employers. These lawsuits seek compensation for wage and hour violations, unpaid benefits, and other damages resulting from misclassification.
  5. Wage claim audits: State labor departments or federal agencies may conduct audits to assess wage and hour compliance. If misclassification is discovered, employers may be required to pay back wages and associated penalties.
  6. Punitive damages: In cases of intentional and willful misclassification, employers may face punitive damages, which are additional financial penalties imposed to punish and deter such conduct.
  7. Legal consequences: Employers who engage in severe or repeated misclassification violations may face criminal charges, which can result in fines and, in extreme cases, jail time for individuals responsible for the misclassification.

Employers need to understand the legal requirements and proper worker classification to avoid these penalties and ensure compliance with employment laws. Seeking legal counsel and guidance can help employers navigate the complexities of worker classification and mitigate the risks associated with misclassification.

How can workers report a business for misclassification?

To report a business for misclassification, workers should visit the official website of their local government. On the website, they can find information regarding the specific process and procedures for reporting such cases.

One way that workers can report employee misclassification is by contacting their state revenue and labor departments.

In the US, workers can use Form 3949-A to report a business for misclassification. If workers would like the IRS to decide about their worker status, they can file the non-anonymous Form SS-8.

An overview of independent contractor tax forms

Here is an overview of two important tax forms related to independent contractor taxes:

Form W-9

If you've classified a worker as an independent contractor, the first step is to have the contractor complete Form W-9 and request for Taxpayer Identification Number and Certification. This form is used to request the correct name and the Tax Identification Number (TIN) of the contractor. It is vital to keep the W-9 forms of your contractors for four years in case of any queries from the workers or the IRS.

Form 1099-NEC

If you're paying an independent contractor, it's important to file Form 1099-NEC to report payments for services provided for your business. You must use this form if you've made payments totaling $600 or more to an independent contractor.

5 methods for determining worker status

Each country has a government body that set instructions, laws and classification tests to accurately classify workers. We've compiled a list of five US-based tests and methodologies for determining worker classification.

Reasonable basis test

The reasonable basis test is a way to determine the classification of a worker as an employee or an independent contractor. It means that the employer has a valid and justifiable reason, based on established rules for classifying the worker in a specific category. This test provides a standard based on how the IRS views workers in comparable situations irrespective of the relationship between you and the worker.

IRS’s 20-factor or common law test

The IRS's 20-factor or common law test is a guideline used to determine whether a worker is classified as an employee or an independent contractor. It is a set of 20 questions, divided into three categories such as financial control, behavioral control, and the nature of the relationship.

It includes factors like the level of control the employer has over the worker, the worker's investment in their tools and equipment, the worker's opportunity for profit or loss, and the nature of the relationship between the parties. By assessing these factors, the IRS can determine the proper classification.

Department of Labor's economic reality test

The US Department of Labour (DOL) uses a multi-factor test to establish a worker's status based on their financial dependency on an employer. The goal of the economic reality test is to determine whether a worker is economically dependent on the employer. Unlike full-time employees, contractors have the freedom to work for multiple employers instead of being restricted to a single employer. This means that their income can come from various sources rather than being limited to just one employer.

The ABC test

The ABS test was implemented by the California Supreme Court to determine if a worker is an employee or an independent contractor across the US. Some courts use this test to determine if a worker is an independent contractor if they check the below points:

The worker has the freedom to decide their working hours and is free from the employer's control to perform a task.

Works at a place outside of the usual course of business and off the client's site of business.

Perform the same type of work for other companies.

Form SS-8

Workers and businesses can use IRS Form SS-8 to request that the IRS perform an audit and officially determine a worker's status.

Are there any protections for contractors?

Local governing bodies have developed their own sets of rules to safeguard contractors from any violations that might result from misclassification.

California: AB 5 and Prop 22

In California, Assembly Bill 5 (AB 5) establishes criteria for determining employee vs. independent contractor status. Proposition 22 exempts app-based drivers from being classified as employees.

New York: Establishing Protections for Freelance Workers Act

This law provides certain protections for freelance workers, including the right to a written contract for freelance work valued at $800 or more over 120 days. The law requires timely and full payment for completed work and offers recourse for freelancers to seek legal remedies if clients fail to pay them.

The law also prohibits client retaliation against freelancers for exercising their rights under the Act. It established the Freelance Isn't Free Office, a government agency responsible for educating freelancers about their rights and assisting them in resolving payment disputes

New Jersey: New laws to identify and penalize misclassification

New Jersey has taken steps to address worker misclassification and protect independent contractors. In 2020, the state enacted a package of laws to identify and penalize employers who engage in employee misclassification. These laws include increased penalties for misclassification, mandatory posting of notices informing workers of their rights, and enhanced coordination between state agencies to combat misclassification.

The new laws in New Jersey aim to ensure that workers receive proper employment classification, ensuring they are afforded the appropriate protections and benefits based on their true work status.

What are the complexities of managing contractors globally?

Managing contractors globally pose complexities, particularly concerning the risks of employee misclassification or worker misclassification. Misclassifying employees as independent contractors can lead to legal and financial repercussions for businesses operating internationally. Compliance with state laws and regulations is crucial for properly classifying workers and avoiding potential liabilities.

Employee misclassification occurs when workers who should be classified as employees are incorrectly labeled as independent contractors. This misclassification can lead to various complications, such as inadequate wage and hour protections, denial of employee benefits, and a lack of access to legal remedies typically afforded to employees. The consequences for misclassifying employees can include significant penalties, fines, and potential legal action from government agencies or affected workers.

Government agencies like the Department of Labor actively monitor worker classification practices and enforce employment laws. Adhering to local labor regulations and seeking legal expertise in each jurisdiction is essential when managing contractors globally.

By understanding the complexities involved, adhering to applicable laws, and accurately classifying workers, businesses can navigate these challenges, maintain compliance, and protect both their interests and the rights of their workers.

How do I avoid employee misclassification as an employer?

It is essential to navigate the complexities of employment law and labor regulations to avoid employee misclassification. Misclassifying a worker as an independent contractor when they should be considered an employee can lead to legal and financial consequences. Here are some key steps to help you properly classify workers and mitigate the risks of employee misclassification:

Understand the criteria

Familiarize yourself with the criteria used to determine employee status in each jurisdiction you operate. These criteria may vary but generally include factors such as control over work, level of independence, and integration into your business operations.

Consult legal experts

Seek advice from legal professionals with expertise in employment law and labor regulations in each relevant jurisdiction. They can guide proper worker classification and help ensure compliance with local laws.

Review contracts and agreements

Evaluate the terms and conditions outlined in contracts or agreements with workers. Ensure that the language accurately reflects the worker's status and their classification as either an employee or an independent contractor.

Examine control and supervision

Assess the degree of control and supervision exercised over the worker. Employees typically have more direct control and are subject to closer supervision, while independent contractors have more autonomy in their work.

Review wages paid

Examine the payment structure and method for workers. Employees are usually paid wages on a regular schedule, while independent contractors often receive payment based on invoices or project milestones.

Stay updated on regulations

Monitor changes in employment laws and labor regulations to ensure ongoing compliance. These laws can evolve, and it is crucial to stay informed about any updates or amendments that may impact worker classification.

Partner with an EOR platform

An Employer of Record enables businesses to hire, pay and manage independent contractors across the globe in compliance with the local employment laws of any country you hire. Avoid the risk of misclassification of employees by partnering with an EOR platform.

By following these steps and seeking legal advice when necessary, global employers can minimize the risk of employee misclassification. Properly classifying workers as employees or independent contractors is essential to uphold compliance, adhere to labor laws, and mitigate potential legal and financial liabilities.

Simplify global contractor management with Skuad

Skuad as an Employer of Record platform helps businesses seamlessly hire, pay, and manage independent contractors worldwide while mitigating the risk of misclassification.

Stay compliant with employment laws in every country, protect your business from penalties, fines, and lawsuits, and ensure hassle-free contractor management. Unlock the benefits of a trusted partner to navigate complex global employment regulations.

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Frequently Asked Questions

1. Why is the misclassification of independent contractors who should be employees a problem?
The misclassification of independent contractors who should be employees is problematic because it denies workers essential employment benefits, such as health insurance, retirement plans, and paid time off, which can significantly impact their financial security and well-being. Additionally, misclassification can result in wage and hour violations, as contractors may be excluded from minimum wage requirements, overtime pay, and other wage-related protections afforded to employees.

2. What are the consequences of treating an employee as an independent contractor?
Treating an employee as an independent contractor can have significant consequences. It may result in legal and financial liabilities, including penalties and lawsuits for violating employment laws. Misclassification can also damage the employer-employee relationship and harm the company's reputation.

3. What is the most important question to consider when determining whether a person is an employee or an independent contractor?
The critical question in determining a person's employment status is the level of control exerted by the employer. This factor plays a vital role in distinguishing between an employee and an independent contractor.

About the author

Catalina Wang is a Human Resource Consultant. She manages recruitment, onboarding, and contract administration staffing for many organizations and remote teams. She’s passionate about efficient HR management and the impact of tech on hiring practices.

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